Cook v. CA Department of Corrections
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 11/7/11 RECOMMEDING that petitioner's 16 motion for temporary restraining order be denied; respondent's 22 motion to dismiss be granted; this action be dismissed as moot; and the district court decline to issue a certificate of appealability. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL COOK,
Petitioner,
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No. 2:10-cv-2489 KJM DAD (HC)
vs.
DIRECTOR OF THE CALIFORNIA
DEPT. OF CORRECTIONS,
FINDINGS AND RECOMMENDATIONS
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Respondent.
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Petitioner is a state prisoner proceeding pro se and in forma pauperis with an
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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding
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on petitioner’s first amended petition, filed October 15, 2010, by which petitioner challenges a
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2009 decision by the California Board of Parole Hearings (hereinafter “Board”) to revoke his
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parole. Petitioner claims that his right to due process was violated when the Board conducted his
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hearing three days late, which prevented him from calling a witness to testify on his behalf. This
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matter is before the court respondent’s motion to dismiss this action as moot. Respondent also
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contends that petitioner’s claim that he was prevented from calling a witness to testify is
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unexhausted. Petitioner opposes the motion.
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The record contains the following evidence relevant to respondent’s motion to
dismiss. On November 16, 2009, petitioner’s parole was revoked for absconding while on parole
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and failing to register as a sex offender. Motion to Dismiss (Doc. No. 22), filed May 23, 2011,
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Ex. 1. Petitioner was returned to custody for a period of twelve months. Id. On or about
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October 7, 2010, petitioner was released from custody to parole. Id., Ex. 2. On March 28, 2011,
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petitioner’s parole was again revoked for failing to participate in sex offender treatment and
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petitioner was returned to custody for seven months. Id., Ex. 3.
In Spencer v. Kemna, 523 U.S. 1 (1998), the United States Supreme Court held
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that a habeas corpus challenge to a parole revocation hearing is mooted by the petitioner’s re-
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release on parole following completion of the prison term imposed as a result of the parole
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revocation. See Nonnette v. Small,316 F.3d 872, 876 (9th Cir. 2002) (citing Spencer, 523 U.S. at
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18.). Here, petitioner has completed the prison sentence imposed with respect to the parole
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revocation petitioner seeks to challenge in this action. This federal habeas petition is therefore
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moot and must be dismissed.
On April 7, 2011, petitioner filed a motion for temporary restraining order,
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seeking immediate release from custody and an order preventing the California Department of
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Corrections and Rehabilitation from arresting him or incarcerating him for another parole
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violation. For the reasons set forth above, this action is moot. Moreover, the arrest of petitioner
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and the subsequent parole revocation proceedings underlying petitioner’s motion for temporary
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restraining order are not placed at issue by the current federal habeas action which challenges
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only the Board’s 2009 decision to revoke his parole. For these reasons, petitioner’s request for
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temporary restraining order should be denied.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United
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States District Courts, “[t]he district court must issue or a deny a certificate of appealability when
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it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of
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appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either
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issue a certificate of appealability indicating which issues satisfy the required showing or must
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state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
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Where, as here, the action is dismissed on procedural grounds, a certificate of
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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it
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debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of
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reason would find it debatable whether the petition states a valid claim of the denial of a
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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.
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McDaniel, 529 U.S. 473, 484 (2000)).
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After reviewing the record herein, this court finds that petitioner has not satisfied
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the first requirement for issuance of a certificate of appealability in this case. Specifically, there
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is no showing that jurists of reason would find it debatable whether this action is moot.
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Accordingly, the district court should decline to issue a certificate of appealability.
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In accordance with the above, IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s April 7, 2011 motion for temporary restraining order (Doc. No. 16)
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be denied;
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2. Respondent’s May 23, 2011 motion to dismiss (Doc. No. 22) be granted;
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3. This action be dismissed as moot; and
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4. The district court decline to issue a certificate of appealability.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: November 7, 2011.
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DAD:12
cook2489.157
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